Gujarat High Court
Arunbhai Jagubhai Patel & vs Collector & on 28 November, 2013
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
ARUNBHAI JAGUBHAI PATELV/SCOLLECTOR C/SCA/1427/2000 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 1427 of 2000 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ ARUNBHAI JAGUBHAI PATEL & 4....Petitioner(s) Versus COLLECTOR & 3....Respondent(s) ================================================================ Appearance: MR MEHUL S SHAH, ADVOCATE for the Petitioner(s) No. 1 , 2.1 - 2.3 , 3 - 3.3 , 4 - 5 MR NIRAJ SONI, AGP, for the Respondent(s) No.1, 2 & 4 RULE SERVED for the Respondent(s) No. 3 ================================================================ CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 28/11/2013 ORAL JUDGMENT
The present petition has been filed by the petitioners under Articles 14, 19, 226 and 227 of the Constitution of India as well as under the Bombay Tenancy and Agricultural Lands Act, 1948 and also under Rule 108(6) of Gujarat Land Revenue Rules, 1972 for the prayers, inter alia, that the impugned order passed by the Special Secretary, Revenue (Appeals) dated 30.12.1999 bearing No. SRD/KHP/ORDER/10/95 confirming the order passed by the Collector, Bharuch dated 9.12.1994 bearing No. HKP/Revision Case No. 22/94 may be quashed and set aside on the grounds stated in the petition.
2. Heard learned counsel Shri Mehul Shah for the petitioners and learned AGP Shri Niraj Soni for the respondents Nos. 1, 2 & 4.
3. Learned counsel Shri Shah pointedly referred to the background of the facts and submitted that the powers are sought to be exercised after 18 years from the date of mutation in purported exercise of suo motu revision by the Collector. He submitted that the land in question was purchased by father of the petitioners way back in the year 1972 and the entry was mutated. Thereafter, the entry was taken in suo motu revision by the Dy. Collector, Bharuch, in proceedingS being RTS Revision No. 20/90 on the ground that such mutation was bad and in breach of sec. 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Tenancy Act ). The order passed by the Dy. Collector was challenged by way of Revision Application No. 28/90 before the Collector, Bharuch and the same was partly allowed and therefore the petitioner had preferred the appeal before the Secretary, Revenue Dept. (Appeals) who had also exercised suo motu powers for violation of the provisions of sec. 63 of the Tenancy Act, which has led to filing of the present petition.
4. Learned counsel Shri Shah submitted that as it has been held in various judicial pronouncements referred to in the petition, the exercise of of such power beyond a reasonable period is bad, arbitrary and illegal. In support of his submission, he has referred to the judgments reported in 1991(1) GLR 113, 1999(2) GLH 82 and 1994(2) GLR 1168. He has also submitted that the Hon ble Apex Court in its judgment in the case of State of Gujarat v. Patel Raghav Natha, reported in 1969(2) SCC 187, has specifically laid down that exercise of such power beyond a reasonable time is illegal. He further submitted referring to the papers that in fact the proceedings under the Tenancy Act was decided in favour of the petitioners and, still, the Secretary (Appeals) in purported exercise of powers passed the impugned order. Therefore, learned counsel Shri Shah submitted that the present petition may be allowed.
5. Learned AGP Shri Soni referred to the papers with reference to the details and submitted that the petitioners had also preferred an appeal and therefore the proceedings have been decided. He submitted that the impugned order has discussed the provisions of sec. 63 and also the definition under sec. 2(6) for considering the violation of the statutory provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. He submitted that as there was no registered sale deed, the entries may not be valid. He has also referred to the provisions of sec. 63 which has been referred to in the impugned order and submitted that the person must be an agriculturist to purchase an agricultural land. Learned AGP Shri Soni submitted that the father of the petitioners was not an agriculturist and therefore the impugned order came to be passed which led to further proceedings under sec. 84C of the Tenancy Act. Further, he has stated that at the relevant point of time, there was a restriction that a person could purchase the land for self-agriculture within the territory of 5 kms. Further, he submitted that as stated in the affidavit-in-reply, the son-in-law was cultivating the land, who would not be included in the definition of family .
6. In view of these rival submissions, it is required to be considered whether the present petition can be entertained.
7. As it transpires from the background of facts, the emphasis is on the transfer of the land in violation of sec. 63 of the Tenancy Act. However, the reference and discussion made in the impugned order is required to be considered in background of the facts. The exercise of such powers has to be within a reasonable period and admittedly the transaction took place in 1972 and thereafter it is sought to be taken in suo motu revision after 18 years. Therefore, as held by the Hon ble Apex Court as well as the High Court of Gujarat in catena of judicial pronouncements, exercise of such power has to be within a reasonable period . In other words, the moot question as to what would be reasonable period is required to be considered with reference to the background of facts.
8. The Hon ble Division Bench of this High Court in the case of Chandulal Gordhandas Ranodriya and ors. v. State of Gujarat & ors., reported in 2013 (2) GLR 1788 has considered this aspect and has considered what would be the reasonable period . The Hon ble Division Bench has referred to and quoted the earlier judgment reported in (2003) 4 SCC 488 and has also referred to the Advanced Law Lexicon by P. Ramanatha Aiyar, (3rd Edn., 2005) and has observed, As observed in Veerayee Ammal v. Seeni Ammal, 2002(1) SCC 134, it is looking at all the circumstances of the case, a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as it is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than directly; such length of time as may fairly, and properly, and reasonable be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea ....
That is a reasonable time that preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer (Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edn., 2005) This judgment is also referred to in the earlier judgment of the Hon ble Apex Court in the case of Patel Raghav Natha (supra).
9. Further, another judgment of the Hon ble Apex Court in the case of Santoshkumar Shivgonda Patil & ors. v. Balasaheb Tukaram Shevale & ors., reported in (2009) 9 SCC 353 = 2009 AIR SCW 6305 has also consistently held that exercise of such power beyond a reasonable period would not be justified.
10. Therefore, having regard to the facts and circumstances and the contentions raised, the present petition deserves to be allowed and accordingly stands allowed. Prayer in terms of para 6(A) is granted. The impugned order passed in proceedings bearing No. SRD/KHP/ORDER/10/95 by the Secretary (Appeals) dated 30.12.1999 produced at Annexure-B confirming the order of the Collector dated 8.12.1994 at Annexure-A is hereby quashed and set aside. Rule is made absolute. No order as to costs.
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